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February 7, 2007

Should Patent Statutes be Interpreted Differently than Others?

Below I posited that the Patent Act ought not be interpreted with the same "what did the words mean at the time" vigor that is applied to other statutes.  Over at patently-o, Dennis Crouch says I'm wrong because all statutes are forward looking.

Yes, that's true.

But what I said was that the patent act, unlike I think every statute except the copyright act, jurisdicitonal statutes, and a few others, arises out of the text of the constitution itself and, I submit, is qualitatively different in "how" forward looking it is when compared to other statutes.  The context and connection to the constitution matter.  It's not a statute about parking tickets, and how "vehicle" in a statute defining illegal parking enacted in 1952 ought to be construed to cover those Segways.

I do think it matters to interpreting at least some of the Patent Act that the words of the statute flow from the constitution -- the words in the statute that originate from or reflect what an "author" is and what "useful arts" are, for example.  I don't pretend to have studied the issue, but surely the meaning of those words is affected by their emination from the constitution.  (Yet, I know that the diversity statute, though using precisely the same words as the constitution, has been interpreted differently (constitution doesn't require complete diversity; diversity statute does), and so that cuts against me, but I do believe there's something there.  Perhaps the cases where strict diversity was originally read into the statute may lead somewhere on this whole point; perhaps not.)

And I think the other point, the forward-lookingness if you will, of the statute is what really sets it apart.  I find it impossible to palate the proposition that the words of the patent act should mean what they meant in 1793/1860/1952/etc.  That just boggles my mind, and would, I think, lead to awful results and extended litigation over meaning.  (See below for a silly example.)

Finally, I'm bored so let's have some fun and test this whole thing.  What if we shortly conclude that there's really no such thing as "matter" at all but it's just vibrations of strings, and the 'reality' we pereceive is only a manifestation of these vibrations that we cannot themselves perceive.   Does the conclusion that there is no "matter" as Jefferson understood the term mean nothing has patentable subject matter, since none of it is "matter" as that phrase was used back in Jefferson's day?

Anyhow, let's not lose the forest from the trees:  Duffy's right in that if you're going to apply textualism to an old statute, you'd better find some old dictionaries and pay close attention to what they say.  It doesn't seem like the PTO did that here.

February 7, 2007 in Current Affairs | Permalink

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As someone who has been a copyright lawyer for 25 years, 8 of which were in the federal legislative branch writing statutory provisions and another 5 as a full-time law faculty member, I have thought a lot about how to apply the Copyright Act, and was a bit surprised at the suggestion that there is anything inherently about it as a whole such that ordinary principles of statutory interpretation don’t apply to it. In an April 2003 lecture, Judge Pierre Leval distinguished between two “admittedly oversimplified” types of statutes, “micromanaging” and “delegating” statutes, Trademark Law: Champion of Free Speech, 27 Colum. J.L. & Arts 187 (2004)
As Judge Leval further noted, interpretative tools appropriate for one type of statute may be inappropriate for another: “The proposition that courts should approach the task of interpretation armed with a dictionary is wholly inappropriate to delegating statutes.” He also recognized that “statutes can be and often are hybrids - partially micromanaging while partially delegating, partially preserving a common law tradition while partially superseding it.”
The Copyright Act is such a hybrid statute, and like most statutes, the Copyright Act does not declare its interpretive intent. Courts must discern Congress’s intent either from the face of the statute or by reading the legislative history. Critical elements of the statute are of the delegating type. These include the meaning of “author,” “original work of authorship,” “idea versus expression” – a key element of protectibility, infringement in the sense of the degree of substantial similarity necessary for material appropriation to occur, and third party liability. Copyright law could not exist without these concepts, and they thus represent a very significant delegation of power from Congress to the courts. Congress indicated this delegation by statements in the committee reports to the 1976 Act. But well before these reports, courts had assumed the responsibility due to the lack of any congressional direction.
Another example of a delegated provision is the fair use defense in 17 U.S.C.A. § 107. A creation of the English common law courts in the early 18th century, fair use was statutorily recognized only in the 1976 Act. It is an example of what Judge Leval calls a “statute adopting common law.” There is a rich legislative history of the provision which should be consulted given Congress’s decision to both recognize the prior common law and to provide some indication of the doctrine’s central elements. As we shall see, all courts, including the Supreme Court, routinely examine that history.
Yet other provisions fall into what Judge Leval calls “new policy” provisions, provisions that reflects a new policy but do so in “vague, imprecise terms.” Thus, the 1976 Act departed from the 1909 Act’s treatment of work for hire ownership, developed by the courts under a bare bones statutory provision in the 1909 Act, by restricting the types of specially ordered or commissioned works to nine enumerated categories, coupled with a writing requirement. The employer-employee prong of work for hire was not, however, defined, resulting in the Supreme Court in the CCNV case adopting a federal common law approach to the key term “employer.”
Further examples of “new policy” provisions in the 1976 Act are the definitions of “copy” and “fixed” in Section 101. These definitions are not only new with the 1976 Act, but they reflect a new policy: that of adopting provisions sufficiently flexible so that as new forms of expression come into existence post-enactment, Congress would not need to amend the Act as new technologies came along, used to create and exploit original works of authorship.
Other provisions of the statute may be described as of the micromanager variety, in particular the highly detailed compulsory license provisions in Sections 111, 112, 114, 115, 119 and 122, as well as the DMCA provisions in Section 512. There are many others too, ones that would warm a textualist’s heart. For those interested in more I am happy to send them my chapter on statutory interpretation from my treatise. You can email me at [email protected]

Posted by: William Patry | Feb 7, 2007 6:03:47 PM

"I do think it matters to interpreting at least some of the Patent Act that the words of the statute flow from the constitution -- the words in the statute that originate from or reflect what an "author" is and what "useful arts" are, for example. I don't pretend to have studied the issue, but surely the meaning of those words is affected by their emination from the constitution."

The 16th amendment states that Congress may tax incomes "from whatever source derived." Section 61 of the Internal Revenue Code states that "gross income means all income from whatever source derived." The Supreme Court has long held that "this language was used by Congress to exert in this field 'the full measure of its taxing power." Commissioner v. Glenshaw Glass Co., 348 US 426, 429-430 (1955). Thus, whenever examining whether something is "income" within the meaning of section 61, courts generally assume that the word has as broad a definition as was used in the Constitution itself; sectoin 61 isn't just some regular old statute to which you interpret according to dictionary definitions and whatnot.

So, for whatever it's worth, I think there is something special about statutory language that "emanates" from the constitution. I have no idea how that principle would apply with regards to patent law, but I'm at least inclined to agree that "it matters to interpreting at least some of the Patent Act that the words of the statute flow from the constitution."

Believe it or not, we may have actually agreed on something.

Posted by: andy | Feb 7, 2007 6:22:01 PM

Thank you both for the thoughts, though I think you two disagree (and Andy and I are, finally, on the same side).

It seems to me that Professor Patry's observations of Judge Leval's observations are, no doubt, true, but do they contradict my point? I don't doubt that typical statutory canons and what-not apply, but when it comes to determining meaning of the text, doesn't the connection to the Constitution impact that?

Now, the thoughts are interesting and maybe this gets us somewhere further down this road. Andy points out that the statutory words "from whatever source derived" was held to reach the limit of the constitution. The Patent Act doesn't say you can patent anything that furthers the "Useful Arts" but instead is limited to matter, manufacture, etc. Perhaps that indicates that the statute doesn't reach the full limits of "anything under the sun is patentable" (despite Diamond v. Chakabarty (sp)). So, the constitution may indicate that, with respect to the Patent Act, the congressional grant in 101 is narrower than the reach allowed by the constitution, and not, as I was positing, that the terms ought to be construed broadly and "more forward looking" (I love blogging because I can use phrases like that, unlike a law review article where that sucker would never make it beyond my fingertips to the screen).

So, perhaps my argument concerning 101 would have full purchase if Congress had made sectoin 101 says something like: "Anything that furthers the Useful Arts" is patentable. At that point, I'd argue that something didn't have to be known to be "useful" or "art" back in 1793 to be patentable subject matter because of it's link to the constitutional language. But, I still say it matters that the grant comes from the Constitution, and determining plain meaning of acts like the patent statute by applying typical textual approaches to determining plain meaning isn't a good idea.

Now, though, why the heck did the court way back when conclude that the diversity statute has a different meaning than the constitutional grant, when both had the same language? (I will know the answer to that shortly, by the way, as that's the next chapter in my civ pro book, where phrases like "sucker" do not exist.)

Posted by: David Hricik | Feb 8, 2007 3:14:10 AM

"I have thought a lot about how to apply the Copyright Act, and was a bit surprised at the suggestion that there is anything inherently about it as a whole such that ordinary principles of statutory interpretation don’t apply to it."

I don't know that saying that, because language emanates from the Constitution, that we are applying an extraordinary principle of statutory construction. Rather, I think it is an *ordinary* principle of statutory construction to findthat "if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it." Evans v. United States, 504 U.S. 255, 260 n.3 (1992) (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 537 (1947)). That approach, I think, is quite consistent with a "textual" or "plain meaning" approach.

If terms in the copyright act are in fact drawn from the common law, or drawn from the Constitution, I do not think we are doing anything unique by saying that the meaning of those words will be derived from the old cases or from the Constitution. In fact, I'd say that's quite ordinary.

Again, I have zero clue how the copyright/patent laws interact with the Constitution. Section 61 of the Internal Revenue Code *obviously* transplants language from the Constitution into the statute, but I have no idea if or how the CRA or related laws transplant constitutional terms. But, if they have, I don't think we'd be applying anything extraordinary by saying the meaning of those words reflect some or all of the features of the words as they were used in the original source.

"Courts must discern Congress’s intent either from the face of the statute or by reading the legislative history....Congress [communicated its intent] by statements in the committee reports to the 1976 Act."

I of course disagree, but would look to see how a reasonable, objective reader would understand the language (yes, I know that is a formalist fiction, but I do not know any theory of statutory interpretation that is not based on formalist fictions of some sort). If it seems *obvious* to a reader of a statute that a word has been derived from the common law, then of course the reader would look to that prior source in determining the meaning of the language; what one committee staffer said to another would not bear on my interpretation. But, I digress...

Posted by: andy | Feb 8, 2007 8:24:49 AM

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